Is there a waiver you can file for if you came to the country illegal ?

i am one of the 11 million undocumented people in the united states and i have a fiance and a 2 year old daughter and they are both united states citizens.. and we are getting married next month... but she struggles with the bills when i don't have a stable job and i work under the table . so i would like to know if there is anything i can do about me not returning back home for ten years when we file in because she would go through hardship if i live and i dont want my child and fiance suffering .... so is there anything i can do or file for ?

The reason one has to leave the US in the first place is because they came in "without inspection", and the reason for the 10 year wait is that if a person leaves the US after being here unlawfully for a year or more, they are subject to a 10 year "bar" before they can get a visa. There is a waiver of the 10 year bar, if you can demonstrate that your spouse would suffer enough hardship. As of this month, there is also a new process that allows you to apply for that waiver before leaving the US - so you would know in advance whether you would be allowed back in with a waiver or not.

The tricky thing is that the waiver only applies for a very specific set of facts, so you may want to meet with an immigration attorney to make sure that the waiver would address all of your issues. I'm including a link to the USCIS page on the provisional waiver process that allows you to apply in advance. Good luck!

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A lot will depend on how long you have been in the US illegally, what immigration lawyers call "unlawful presence". You can get a waiver for previous unlawful presence if you can show severe hardship on the part of the petitioning US Citizen who is an immediate family member. But that is after someone files a petition on your behalf. Remember that a visa is a privilege not a right. Even if your waiver is granted, the status will only be conditional since your marriage will be less than 2 years.

You can appy for an extreme hardship waiver for the 10-year bar. The application is now made in the U.S. so that you minimize the amount of time that you spend outside of the U.S. You can do this application in the U.S. only if you qualify for section 245(i). Which means that you must have had an I-130, I-140, I-526 or labor certification on file on or before April 30, 2001.

Just as my colleagues have pointed out, you would be barred from admission into the US for 10 years--however, the waiver you would apply for to overcome this problem is a request for the US government to waive the 10 year bar against you. You note that your US citizen child and fiance would suffer if you were forced to remain aboard. However, please keep in mind that you must prove that a qualifying relative, as defined by the new waiver law, would suffer extreme hardship if you were deported or forced to return to your home country. The standard to prove extreme hardship is very a very high burden and must be above and beyond ordinary hardship. Waivers can be tricky and difficult, so I highly recommend consulting with an experienced immigration attorney before trying the process. Also, you do not mention your age, but you say that you are working under the table--you may also want to consult with an immigration attorney to see if would qualify for the Deferred Action for Childhood Arrivals (DACA) program under which you could obtain an employment authorization card to work, a SSN, and a Driver's License in IL. Good luck to you!

FOR CONSULTATION on IMMIGRATION or FAMILY LAW MATTERS Contact: Law Offices of Jennifer L. Bennett, 312.972.7969, attorney_jb@yahoo.com, 3806 W. Irving Park Road, Suite B, Chicago, IL 60618. The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advice specific to your situation and/or case. The statement above does not create an attorney/client relationship. Answers on Avvo are only general in nature; specific answers require knowledge of all facts.